Supreme Court Cases of Interest - American Bar Association · Supreme Court Cases of ... in conflict with the decisions of this Court and other courts ... hearing is properly held

Published in Criminal Justice, Volume 26, Number 2, Summer 2011. © 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

CAROL GARFIEL FREEMAN has been a staff lawyer with the US District Court for the District of Columbia, and a deputy district public defender in Maryland. She is a contributing editor to Criminal Justice magazine and has been a Section vice-chair for publications, chair of the Book Board, and chair and member of the editorial board of the magazine.

CERt ALERt

Supreme Court Cases of InterestBY CAROL GARFIEL FREEMAN

By April 30, although the court had ruled on several of the criminal justice cases in which it had heard argument, most of

the cases accepted this term had yet to be decided. None of the remaining cases are blockbusters as we have had in the past few years. Still open cases included California’s challenge to a federal order relating to prison conditions (Schwarzenegger v. Plata, No. 09-1233), cases concerning the circum-stances under which officials can question suspected child abuse victims (Alford v. Greene, No 09-1478, and Camrata v. Greene, No. 09-1474), and a case involving the scope of absolute immunity of the attorney general for alleged misuse of the material witness statute (Ashcroft v. Al-Kidd, No. 10-98), in addition to other cases involving the Fourth, Fifth, and Sixth Amendments and sentencing rules. The remaining decisions of the term will be summarized in the fall issue of the magazine.

After hearing argument in Tolentino v. New York, the court dismissed cert as improvidently granted. (131 S. Ct. 1387 (March 29, 2011) (No. 09-11556).) The question presented was whether a driver’s traffic records were subject to the exclu-sionary rule because the driver’s name had been obtained during an apparently illegal traffic stop.

On March 28, the court summarily denied re-view, without discussion, of several challenges by Troy Davis to a district court decision that, after a hearing, had denied his claim of actual in-nocence. (Davis v. Humphrey, 2011 WL 220687 (No. 10-950) (appeal dismissed, cert denied, com-mon law writ of cert denied); Davis v. Humphrey, 2011 WL 220685 (No. 10-949) (cert denied); In re

Davis, 2011 WL 1103386 (No. 08-1443) (denying Davis’ original cert petition in the Supreme Court that had been remanded to the district court with instructions to conduct a hearing on the claim of actual innocence, 130 S. Ct. 1 (2009).) In late April the court denied a petition for cert by cer-tain Uighers held at Guantanamo. The court of appeals had reversed a district court order in a habeas case directing that the petitioners be re-leased into the United States. In a statement ac-companying the denial of cert, Justice Breyer, with whom Justices Kennedy, Ginsburg, and Sotomayor joined, observed that the petitioners had rejected at least two offers of resettlement in other countries and that the government was working to resettle them. Were this situation to “materially change,” these justices noted, peti-tioners would be free to raise their original or re-lated issues again. (Kiyemba v. Obama, 2011 WL 1457627 (April 18, 2011) (No. 10-775).)

CERTIORARI GRANTED Note: Questions presented are quoted as drafted by the parties, or, in some instances, by the court.

Capital Case—HabeasMaples v. Thomas, cert. granted limited to ques-tion 2 presented by the petition, 2011 WL 940889 (March 21, 2011) (No. 10-63), decision below at 586 F.3d 879 (11th Cir. 2009), reh’g denied, Feb. 9, 2010.

In this capital case, the divided Eleventh Circuit held that Alabama may execute a state inmate without any federal court re-view of the merits of serious constitutional claims because of a missed filing deadline that indisputably occurred through no fault of petitioner and after the State failed to take any action when court orders mailed to petitioner’s lead attorneys of record were returned to a court clerk unopened with “Return to Sender - Left Firm” written on an envelope. The questions presented are as follows:

. . .2. Whether the Eleventh Circuit properly held - in conflict with the decisions of this Court and other courts - that there was no “cause” to excuse any procedural default where petitioner was blameless for the de-fault, the State’s own conduct contributed to the default, and petitioner’s attorneys of

CJsu11_web.indd 50 7/14/11 10:33 AM


record were no longer functioning as his agents at the time of any default.

Fourth AmendmentFlorence v. Board of Chosen Freeholders, cert. granted, 2011 WL 202772 (April 4, 2011) (No. 10-954), decision below at 621 F.3d 296 (3d Cir. 2010).

Whether the Fourth Amendment permits a jail to conduct a suspicionless strip search of every individual arrested for any minor offense no matter what the circumstances.

HabeasGreene v. Fisher, cert. granted, 2011 WL 1225723 (April 4, 2011) (No. 10-637), decision below at 606 F.3d 85 (3d Cir. 2010), reh’g denied, July 20, 2010.

For purposes of adjudicating a state prison-er’s petition for federal habeas relief, what is the temporal cutoff for whether a deci-sion from this Court qualifies as “clearly established Federal law” under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996?

ImmigrationJudulang v. Holder, cert. granted, 2011 WL1457529 (April 18, 2011) (No. 10-694), decision below at 249 Fed. Appx. 499 (9th Cir, 2007), reh’g denied, Aug. 26, 2010.

For more than 25 years, the Board of Im-migration Appeals (BIA) held that a legal permanent resident (LPR) who is deport-able due to a criminal conviction could seek a discretionary waiver of removal under Section 212(c) of the Immigration and Na-tionality Act, 8 U.S.C. § 1182(c), provided that the conviction also would have con-stituted a waivable basis for exclusion. In 2005, the BIA abruptly changed course, adding a requirement that the LPR be de-portable under a statutory provision that used “similar language” to an exclusion provision. Deportable LPRs who departed and reentered the United States after their conviction, however, may seek Section 212(c) relief under a longstanding “nunc pro tunc” procedure that does not turn on similar language between deportation and exclusion provisions. Thus, under the BIA’s current view, an LPR who pled guilty to an offense that renders him both deportable and excludable, but under provisions that

use dissimilar phrasing, will be eligible for Section 212(c) relief from deportation if he departed and reentered the United States after his conviction, but ineligible if he did not depart. The circuits are split three ways on the lawfulness of the BIA’s new interpre-tation.

The question presented is:Whether a lawful permanent resident who was convicted by guilty plea of an offense that renders him deportable and excludable under differently phrased statutory subsec-tions, but who did not depart and reenter the United States between his conviction and the commencement of removal proceedings, is categorically foreclosed from seeking dis-cretionary relief from removal under former Section 212(c) of the INA.

Related Civil CaseRehberg v. Paulk, cert. granted, 2011 WL 940891 (March 21, 2011) (No. 10-788), decision below at 611 F.3d 828 (11th Cir. 2010).

In Briscoe v. LaHue, 460 U.S. 325 (1983), this Court held that law enforcement offi-cials enjoy absolute immunity from civil li-ability under 42 U.S.C. § 1983 for perjured testimony that they provide at trial. But in Malley v. Briggs, 475 U.S. 335 (1986), this Court held that law enforcement officials are not entitled to absolute immunity when they act as “complaining witnesses” to ini-tiate a criminal prosecution by submitting a legally invalid arrest warrant. The federal courts of appeals have since divided about how Briscoe and Malley apply when govern-ment officials act as complaining witnesses” by testifying before a grand jury or at an-other judicial proceeding. The question pre-sented in this case is:

Whether a government official who acts as a “complaining witness” by presenting per-jured testimony against an innocent citizen is entitled to absolute immunity from a Sec-tion 1983 claim for civil damages.

DECIDED CASESHabeas CorpusCullen v. Pinholster, 131 S. Ct. 1388 (April 4, 2011) (No. 09-1088) (capital case). In two postconvic-

CJsu11_web.indd 51 7/14/11 10:33 AM


tion petitions in state court, Pinholster claimed that his trial counsel had failed to sufficiently in-vestigate and present mitigating evidence at the sentencing phase of his capital murder trial. The state court denied both petitions summarily. Af-ter hearing addition evidence on federal habeas, the district court granted Pinholster’s petition and Ninth Circuit Court of Appeals, en banc, af-firmed. The Supreme Court reversed. In Part II of the majority opinion the court concluded that under Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 22549(d)(1), when the petitioner contends that a state court’s decision rejecting his claim on the merits was “contrary to, or involved an unreasonable application of, clearly established Federal law,” review on fed-eral habeas is limited to evidence presented to the state court. Part III of the opinion discussed the application of the standards for claims of in-effective assistance of counsel as established in Strickland v. Washington, 466 U.S. 668 (1984), as to both competence and prejudice. The ma-jority concluded that the state court’s decision to deny relief was not “based on an unreason-able determination of the facts” or application of federal law (28 U.S.C. § 2254(d)(2).) Opinion for the court by Justice Thomas, which Chief Justice Roberts and Justices Scalia and Kennedy joined in full, which Justice Alito joined as to all except Part II (whether new evidence can be presented on federal habeas), and which Justices Ginsburg and Kagan joined only as to Part II (availability of new evidence on habeas). Justice Alito filed an opinion concurring in part and in the judgment. Although evidentiary hearings on federal habeas should be rare and limited to evi-dence that was not and could not have been pre-sented to the state court, he agreed with Justice Sotomayor’s dissent that “when an evidentiary hearing is properly held in federal court, review under 28 U. S. C. § 2254(d)(1) must take into ac-count the evidence admitted at that hearing.” Justice Breyer filed an opinion concurring in Parts I and II of the court’s opinion but dissent-ing in that he would remand the case to the court of appeals for review based on the legal stan-dards announced in this case. Justice Sotomayor filed a dissent, joined by Justices Ginsburg and Kagan insofar as she concluded that Pinholster had shown that his counsel were constitutionally ineffective based on the evidence produced in the state court.

Walker v. Martin, 131 S. Ct. 1120 (Feb. 23, 2011) (No. 09-996). Martin challenged the California rule of reasonableness in determining whether a habeas period is timely filed. His second petition, filed almost five years after his conviction had be-come final, was denied summarily by the California court, citing two cases that defined the state rule on timeliness. The Supreme Court held that the time-liness rule was sufficiently “firmly established” and “regularly followed” to constitute an adequate state ground barring Martin’s federal habeas petition. Opinion by Justice Ginsburg for the court.

Jury Selection—BatsonFelkner v. Jackson, 131 S. Ct. 1305 (March 21, 2011) (No. 10-797) (per curiam). The court sum-marily granted cert and reversed a decision of the Court of Appeals for the Ninth Circuit on a Batson issue (Batson v. Kentucky, 476 U.S. 79 (1986).) The California trial and appellate courts had discussed and accepted the prosecutor’s race-neutral reasons for striking the challenged African-American prospective jurors, and the district court on habeas had concluded that these decisions were not unreasonable. Given the defer-ence due to credibility determinations by the trial court, and the requirement that habeas should not be granted unless that determination was un-reasonable on the evidence presented, the court of appeals (which gave no specific reasons for its rejection of the reasoned decisions of the lower courts) erred in reversing the denial of habeas.

SentencingPepper v. United States, 131 S. Ct. 1229 (March 2, 2011) (No. 09-6822). Pepper had been sentenced to 24 months’ imprisonment plus five years of supervised release, a 75 percent reduction from the guidelines based in part on his substantial as-sistance. Subsequently, the Supreme Court con-cluded that the federal sentencing guidelines were only advisory, United States v. Booker, 543 U.S. 220 (2005). The Eighth Circuit reversed for resen-tencing in light, inter alia, of Booker. On resen-tencing, after Pepper had served the 24 months, the district judge imposed the same sentence af-ter hearing testimony about Pepper’s substantial postsentence rehabilitation. The court of appeals reversed on the ground that postsentence reha-bilitation could not be considered, and directed that a different judge impose the sentence. The Supreme Court vacated that judgment in light of

CJsu11_web.indd 52 7/14/11 10:33 AM


Gall v. United States, 552 U.S. 38 (2007), the court of appeals reversed, and although Pepper’s reha-bilitation had continued the new district judge imposed a 65-month sentence and 12 months’ supervised release. The Eighth Circuit affirmed. The Supreme Court reversed, holding that when a sentence has been reversed on appeal, the district court can consider postsentence rehabilitation, which may justify a downward departure from the now-advisory guidelines. The government confessed error on this issue; the court’s opin-ion discusses arguments in support of the court of appeals’ decision raised by appointed amicus. The court further held that because the case had been remanded for a de novo resentencing, the second sentencing judge was not bound to grant the same percentage reduction for assistance. Opinion by Justice Sotomayor, in which Chief Justice Roberts and Justices Scalia, Kennedy, and Ginsburg joined, and Justices Breyer and Alito joined in part. Justices Breyer and Alito filed sep-arate opinions explaining their positions, Justice Breyer concurring and Justice Alito concurring in part and in the judgment, but dissenting in part. Justice Thomas dissented on the ground that the guidelines should be mandatory.

Sixth AmendmentMichigan v. Bryant, 131 S. Ct. 1143 (Feb. 28, 2011) (No. 09-150). In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that the Sixth Amendment confrontation clause prohibits the admission of “testimonial” statements made out of court unless the declarant is unavailable and the defendant has had an opportunity for cross-examination. Crawford included some police inter-rogations in the category of “testimonial evidence.” In Davis v. Washington, 547 U. S. 813 (2006), the court explained, however, that statements are not “testimonial” when objective evidence shows that the “primary purpose” of the police questioning is to obtain information to respond to an “ongo-ing emergency.” In the instant case the court took pains to distinguish the facts from those in the domestic violence prosecutions in Davis and the related case of Hammon v. Indiana. In this case, the statements at issue were made by a man who had been shot in the abdomen (and later died) to police who had responded to an emergency call at a gas station. The victim named the shooter, told the police where the shooting had occurred, and explained that he had driven himself to the

station (thus the shooter was not in the immediate vicinity). The court reviewed the objective evidence: The informal questioning occurred in a parking lot fairly soon after the shooting, the victim kept asking when the emergency personnel would arrive, a gun was involved, and the whereabouts of the shooter were unknown. The circumstances under which the questioning occurred, and the statements and actions of the declarant-victim and the police, objectively considered, show that the interrogation was primar-ily to enable the police to respond to an ongoing emergency and thus the victim’s statements were not testimonial. Opinion by Justice Sotomayor, in which Chief Justice Roberts and Justices Kennedy, Breyer, and Alito joined. Justice Thomas filed a concurring opinion. Justices Scalia and Ginsburg filed dissenting opinions. Justice Scalia’s dissent is a scathing attack on what he contends is the majority’s evisceration of the confrontation clause as interpreted in Crawford. In his view, if a perspective is to be considered in determining whether a statement is testimonial, the only perspective should be that of the declarant and whether he intends the statement to be used against a defendant. Justice Ginsburg agreed with Justice Sca-lia, but would find the statements testimonial even if the police intention were controlling. Justice Gins-burg would also be interested in considering whether the hearsay exception for dying declarations would constitute an exception to the confrontation clause jurisprudence. Justice Kagan took no part in the con-sideration or decision of the case.

Wall v. Kholi, 131 S. Ct. 1278 (March 7, 2011) (No. 09-868). Under the Antiterrorism and Effec-tive Death Penalty Act, 28 US.C. § 2244(d)(1)(A), (2), federal habeas generally must be filed within one year of the date on which a state judgment be-comes final. This case held that a motion to reduce sentence qualifies as “a properly filed application for State post-conviction or other collateral review” that tolls the one-year period. Opinion for the court by Justice Alito, in which all justices concur except that Justice Scalia filed a concurring opinion ex-plaining his disagreement with respect to a footnote speculating as to whether under state law a motion to reduce sentence constitutes a direct appeal.

Related Civil CasesConnick v. Thompson, 131 S. Ct. 1350 (March 29, 2011) (No. 09-571). Because Thompson had been convicted of attempted armed robbery, he declined to testify in a later murder case and was

CJsu11_web.indd 53 7/14/11 10:33 AM


sentenced to death. One month before his sched-uled execution, his investigator found in the police crime lab files a lab report from the robbery case which was exculpatory. After both convictions were vacated and he was acquitted of the murder, Thompson filed an action under 42 U.S.C. § 1983, contending that the New Orleans district attorney had violated his civil rights by an unconstitutional office policy and by failing properly to train staff as to their obligations under Brady v. Maryland, 373 U.S. 83 (1963). Connick, the district attorney, conceded that the failure to disclose the lab re-port violated Brady. Assistant prosecutors testi-fied that they were aware of Brady and that office policy was to disclose lab reports to defense coun-sel. There was also evidence that the lab report had been purposely withheld from defense coun-sel. The court of appeals affirmed a jury verdict awarding Thompson $14 million based on the theory that the office had failed properly to train its attorneys. The Supreme Court in a 5–4 decision reversed, holding that a single incident of a Brady violation does not constitute the required deliber-ate indifference to the need for further or different training that would justify a finding of a munici-pal policy under Monell v. New York City Dep’t of Social Servs., 436 U.S. 658 (1978). Although four other convictions from the same office had been vacated for Brady violations in the previous 10 years, these did not involve scientific evidence and thus did not show a pattern of violation that would alert the district attorney to the need for further training. The court distinguished the situ-ation discussed in Canton v. Harris, 489 U.S. 378 (1989), of a failure to train police in the use of deadly force, which might constitute “deliberate indifference” because of the likely consequences of untrained armed novice police. Attorneys, on the, other hand, are trained in the law, are required to continue their legal education after admission to the bar, have ethical responsibilities, and can be assumed to be cognizant of their constitutional obligations. The four other instances in which the state courts had found Brady violations did not involve blood, lab reports, or other scientific evi-dence and therefore would not put the defendant on notice of a need for Brady training. A single incident of a Brady violation, therefore, does not constitute the deliberate indifference necessary to find municipal liability. Opinion by Justice Thom-as with whom Chief Justice Roberts and Justices Scalia, Kennedy, and Alito joined. Justice Scalia

filed a concurrence in which Justice Alito joined, addressing the dissent. Justice Ginsburg filed a dissenting opinion in which Justices Breyer, Soto-mayor and Kagan joined. The dissent challenged the majority’s conclusion that there had been no pattern of Brady violations, referring to several other instances in the record of potentially ex-culpatory evidence that had not been disclosed to Thompson’s attorneys before his trials. That evidence apparently was instrumental in persuad-ing the jury in the retried murder case to acquit Thompson after only 35 minutes. The dissent cit-ed evidence in the record that the district attorney himself, as well as senior and line prosecutors, had misunderstood the requirements of Brady, that many assistants were inexperienced, and that the office had conducted no formal training in Brady obligations. The dissent concluded that this case met the standard of Canton, because the need for training in Brady obligations, which may be dif-ficult to apply, was so obvious that the failure to provide it constituted deliberate indifference to Thompson’s constitutional rights.

Skinner v. Switzer, 131 S. Ct. 1289 (March 7, 2011) (No. 09-9000). After Texas enacted a stat-ute authorizing prisoners to obtain postcon-viction DNA testing in certain circumstances, Skinner filed two motions in state court for such testing, both of which were denied. He then filed a civil rights action under 42 U.SC. § 1983, seek-ing injunctive relief and alleging that the Texas courts’ interpretation of the statute denied him his right to due process. The questions before the Supreme Court were whether the federal courts have subject matter jurisdiction over the claim, and whether the claim can be brought under sec-tion 1983. The court held that Skinner’s complaint challenged the state courts’ interpretation of the state statute, rather than directly challenging the state courts’ rulings, which would be improper un-der the Rooker-Feldman doctrine. (Rooker v. Fidel-ity Trust Co., 264 U.S. 413 (1923); District of Co-lumbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).) Moreover, his complaint was not barred by the rule that a direct challenge to a conviction may only be brought under habeas—Heck v. Hum-phrey, 512 U.S. 477 (1994)—because a decision in Skinner’s favor would not “necessarily imply” that his conviction was invalid since the DNA testing might be inconclusive or, indeed, prove inculpa-tory. The case was reversed and remanded for con-

CJsu11_web.indd 54 7/14/11 10:33 AM


sideration of other objections to the complaint. Opinion by Justice Ginsburg, with whom Chief Justice Roberts and Justices Scalia, Breyer, Soto-mayor, and Kagan joined. Justice Thomas filed a dissenting opinion in which Justices Kennedy and Alito joined, construing Skinner’s complaint as one attacking the state’s postconviction proce-dures, which must be brought in habeas.

Sossamon v. Texas, 2011 WL 1485252 (April 20, 2011) (No 08-1438). The Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc-1, provides a private cause of action for “appropriate relief” for institutionalized persons who claim that states and state agents have undu-ly restricted their rights to exercise their religion. Sossamon sued Texas and prison officials for in-

junctive and monetary relief, based on prison pol-icies precluding prisoners on cell restriction from attending church services and barring use of the prison chapel for religious worship. The Supreme Court held that the acceptance by the state of federal funds does not waive the state’s defense of sovereign immunity to such a suit for money damages. Apparently the prison abandoned both policies after the case was filed, mooting the claim for injunctive relief. Opinion for the court by Jus-tice Thomas in which Chief Justice Roberts and Justices Scalia, Kennedy, Ginsburg, and Alito joined. Justice Sotomayor filed a dissenting opin-ion in which Justice Breyer joined, on the ground that “appropriate relief” in the statute includes money damages. Justice Kagan took no part in the consideration or decision of the case. n

CJsu11_web.indd 55 7/14/11 10:33 AM

Documents

Supreme Court Cases of Interest - American Bar Association · Supreme Court Cases of ... in conflict with the decisions of this Court and other courts ... hearing is properly held